Thursday, June 26, 2008

Well, another "fun" case that just came out from our Supreme Court is the Exxon case. At issue was whether the 2.5 Billion in punitive damages (on top of about 500 million in compensatory damages) was too much. The court said that it was and reduced it to a 1:1 ratio, for about 500 million in punitive damages. Why does this matter? Well, as I briefly touched on before as part of this post, punitive damages are important, particularly against corporations, as a deterrent to quasi-criminal behavior. You can't throw a corporation in jail. You can only hurt its bottom line. And the main way you can do this is with punitive damages. More importantly, it is good when that can be an open ended number, something that could not be quatified in advance. You don't want bean-counters deciding that it would actually be cheaper for a corporation to engage in quasi-criminal behavior and then pay out on the lawsuits than to behave itself. And that is EXACTLY what will happen if you quantify and limit punitive damages.

You want it to be an unknown. You want those bean counters shaking in their wing-tips, worried about what they might have to pay out if the corporation engages in wrongdoing, and by doing so, you deter that quasi-criminal behavior. (Also, another function they serve is helping to cover the cost of attorney fees - we don't generally have a loser-pays system, so what punitive damages often do is cover the attorney fee costs for the plaintiff so that the plaintiff can truly be made whole, as opposed to winning, but only getting 2/3rd of the damages that were inflicted by a defendant actually compensated for, so in that respect, they aren't even a "payday" for a plaintiff - if you lose a million dollars in damages and then are only paid back $600,000, and only after years of litigation, it is hard to say you really did all that well. Throw on enough punitive damages on top of that so, after lawyers fees (usually 1/3rd) are taken out, you only get your money back, you still won't feel all that much of a "winner" if it took years of your life and a lot of sleepless nights just to get back to zero. Punitive damages that pay for attorney fees and then, above that, add a little extra, can make those years and years of fighting at least somewhat compensated for.)

This latest case is a huge blow for that - the limit is tiny - a 1:1 ratio (at least for maritime cases-but expect to see this expanded soon), and now the bean-counters are going to be going crazy about all the wonderful criminal behaviors corporations can now do with impunity.

For further commentary on this, see this link. In particular, it is sad to see the level of idiocy with those who are against punitive damages - see the comments. I won't repeat it here except to note the sheer idiocy of claiming that a corporation doesn't owe damages because "it" didn't do anything, it was its employee that did it. Of course, by that logic, corporations are never responsible for anything - it is all those darn employees that are responsible. Wow, I guess corporations can just fire all of their corporate legal staff - they don't need them - they can never be responsible for actually doing anything!

While it has many pages and is quite long winded, especially with the dissents, it boils down to simply this: The Second Amendment reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The basic disagreement was whether this meant that only state militias are constitutionally protected or whether individuals are.

I agree with the individual protection. Or, to put it another way (as is noted in the opinion), another way to phrase the amendment (with the same meaning) is: "Because a well-regulated Militia is necessary for the security of a free state, the right of the people to keep and bear Arms shall not be infringed."

The meaning of a Militia is also important to note - back then, a Militia was every ablebodied man between a certain age. In other words, it was really the whole population (minus women, which has since been mostly remedied in our military, and minus the too young or old, which is just common sense). So the notion was that in order for there to be an effective Militia, every man needed to keep and bear arms (and know how to use them) so they would be there to be drawn upon as needed. This was not the national guard. This was EVERYONE (within the gender/ableism limits of the time).

On top of that, they were VERY mistrustful of the notion of the government having a monopoly on military arms - they wanted the population itself to be armed militarily so as to always have the threat of another revolution if the government turned to tyranny.

So I'm very pleased with this opinion, though I must confess, I like many others had the notion that this was a well-settled issue - probably because it has been treated as such for so long despite the lack of a definitive ruling.

I don't particularly like the idea of just the official government having a monopoly on arms - I simply don't trust anyone with that kind of power. Power corrupts. Guaranteed. I could go into all of the instances of where government guns have killed people, no charges filed - like with ill-conceived police drug raids, but I'll save that for another time.

I will close by saying that I'm a huge fan of the Bill of Rights, and I don't get selective there about which ones I champion - I am fanatical about all 10 of them. Its too bad that neither political party is as consistent. (The right-wing seems to think only the 2nd Amendment exists, while the left seems to think everything but the 2nd exists (and possibly not the 9th or 10th either).

One of these days I may even go out and buy a gun.

UPDATE: Well, upon looking into the whole opinion, it isn't that much to write home about. It just maintains the status quo. Any logical reading of the Constitution would recognize that it is about military weapons - it isn't about self-defense or hunting. That means ALL arms, including things like machine guns, bazookas, RPGs, etc. Of course, that would scare the crap out of most people, so let's just ignore that and just twist some logic to get the result we want. It really makes no sense. Oh well. (Note that I am not giving any opinion on whether it would actually be a good idea to have the populace as well armed as the military. Whether it is a good idea or not, it is the law, whether we want to accept it or not.)

Tuesday, June 24, 2008

I'm feeling utterly depressed now about this FISA thing. As I mentioned yesterday, the Democrats yet again cave in completely and act like it is some sort of "victory". It is particularly galling to see Obama lining up behind this instead of acting like a leader and fillibustering the hell out of it. Probably his politicos are telling him that he has to support this or the GOP will make hay out of this in November. So once again, the GOP fearmongering sets the agenda.

And yet despite this, I still want Obama to win. Really, what choice is there? Based on this latest outrage, I can certainly understand being upset with the Democratic party. But voting GOP won't help with that. In the past, all that has done is made the Democrats afraid of their own shadows, eager to act more like Republicans to get elected. They seem to take GOP victories as evidence that the public wants GOP policies, when the reality is, on poll after poll, the policies favored by Democrats are by far the more favored.

Still, I can understand those who don't want to support Obama, particularly after this. What I still fail to understand is why anyone who is even nominally a progressive would actually want Obama to lose and see McCain win. That just doesn't make any sense at all. I've seen plenty of left-wing sites where basically they seem to have made it their mission to utterly destroy Obama. They'd rather see McCain win than let Obama in there. I don't claim it is out of spite for Clinton's narrow loss, but it could certainly be taken that way. Before I comment on that further, I wonder if a little thought experiment is in order.

If Clinton won the primary and she was the presumptive nominee now, and then certain supporters of Obama then claimed they were so upset with this, with Clinton's racism, with being "thrown under the bus" by the Clinton campaign that they would rather vote for McCain than Clinton, I think those progressives now out to destroy Obama would have a very different thing to say about those people. They'd probably call them misogynist. Ok, no probably there, they WOULD call them misogynist, and they'd argue that this was an appropriate label because there'd be no other reason for them to vote for McCain, someone much less progressive than Clinton, unless they had one overriding reason: the fact that she's a woman. Of course, they'd say that without realizing that the same could be said of them (except about racism) if the situation was reversed - oh wait, it is reversed. I'm not saying that either "ism" label would be appropriate in either case, I'm just pointing out that that is what would happen.

I don't think Obama is perfect. Far from it. There's a lot to worry about. The thing is, after Bush in office for eight years, any fool can see that we simply can NEVER trust the GOP with the office of the president ever again. In that sense, it isn't even about Obama - it is about not rewarding that level of criminal behavior with four more years of power. As far as I'm concerned, it is criminal to reward that sort of criminal behavior with another GOP victory.

And to use a last, probably offensive analogy - if you have two choices, one slightly sucky, one tremendously horrible, it is best to take the sucky one. Better to eat a stale cookie than a fresh piece of dung. If the two choices are either a man who has occasionally harrassed women or a rapist, you don't vote for the rapist if you have any claim to care about women. You could certainly justify not voting for either, though even there, in a swing state, if that puts a rapist in office, that is really not consistent with progressive values. Sure, it sucks to even have that choice, but there it is. If some horrible B-movie plot choice were placed in front of me and I had to choose between having my daughter raped or sexually harrased (with no option C) I 'd have to go with option B. And I would not get out of moral responsibility for any rape that would result if I did fill in a 'C' and as a result, it defaulted to 'A'. If you know not voting for B makes A happen, you are complicit. Now, it isn't quite that stark with the candidates - John McCain is not a rapist - but then one could say that our Constitution was pretty effectively shredded (raped?) by Bush. With the Democtrats meekly going along (even in the majority).

I don't expect I would change anyones' mind. Anyone out to destroy Obama is beyond any persuasion I could offer.

Barefoot Bum has listed the reasons why he's no longer a Democrat(and no longer will support the lesser of two evils), and it is hard to argue with any of them - I agree with so many. But one thing that I do wonder (as I commented on his site) - can you really say that voting always for the lesser of two evils doesn't have an effect? After all, we have often gotten the greater of two evils so many times over the past 30 years - and I still have hope that if instead we had always gotten the lesser of two evils - say in every presidential election of the past 30 years, that things would have incrementally gotten better. Sort of like a political natural selection. I think the opposite was what really happened - Democratic politicians faced defeat after defeat after defeat and so as a result, they saw the GOP winning and so saw that as what they needed to do to win - be more like the GOP - in that sense, the greater of two evils winning resulted in more evil - thus, I'd like to think if the lesser won that consistently, we'd go in the other direction. There would certainly be a rational reason to expect that to be the case.

I'd love to have better choices. I'd love to have a system where third parties were viable (which I think only happens where you have 2nd and 3rd choices on the ballot, so you know a vote isn't "wasted") But we have the system we have. And we have the choice now between a greater and lesser evil. And I simply cannot in good conscience let the greater evil win. The last objection to that would be if there really was no difference in evil between the two candidates, but after seeing what Bush just did with the presidency, it is simply beyond argument that the GOP is vastly worse.

I still have some hope about an Obama presidency. Not a lot. It shrunk a lot after seeing the FISA mess. But with McCain, I just see darkness.

And just to make sure that all hope is smothered out of me, Barrack Obama has made sure to also surrender. I'd be more pissed than just depressed if I didn't also know that Hillary Clinton would have been equally mealy-mouthed on this. The only thing that could cheer me up now is to see both candidates unequivocally object to this, dragging along the Democratic Senate into stopping this atrocity. They need to call a press conference and make this front-page news. They have the power. They could stop it. But no, they are going to surrender.

I hope I can get the nasty taste out of my mouth. Excuse me while I go find a glass of water.

Wednesday, June 18, 2008

I knew it was bad, I just didn't know it was this bad. But I can't say I'm terribly surprised. Michigan's economy is in the toilet. The state budget is hundreds of millions in the red every year, even after cuts and deals. There's no money and even if there was, there's not much will to spend it on "criminal scumbags."

Still, it is a disgrace. Criminal defendants have the constitutional right to competent counsel. The reality is that "competent" has come to be interpreted by the courts as "barely qualified" and doesn't preclude huge blunders on the part of counsel. I think this is a combination of a lack of political will to pay for competent representation combined with a desire to keep the dockets moving (and they'd only be slowed down by competent counsel and having actual trials instead of hastily negotiated plea deals).

As far as I'm concerned, one does not get competent counsel without paying for it, so the fact that public defenders are generally paid probably 20% or less ($25 an hour being typical) what they would be paid if they were hired by a paying defedant ($150-400 an hour, depending on experience - and that is cheap compared to other states) means that it is impossible to truly give competent counsel in our system to indigent defendants consistently.

On top of that there is also often little to no money for paying for things like an investigator or experts - as compared to the prosecution which has the entire resources of the state backing them up, with labs, professional scientists, and thousands of police officers who act as investigators.

A fair system would have an equal number of resources available to the prosecutor and defendant, including investigators and scientists. As it is, while people seem to treat the whole CSI thing by the state as "neutral" the reality is that they really work for the prosecution and the police and some have been known to tilt results in favor of conviction. (There's a particularly bad example of this in Mississippi). A fair system would have an equal number of prosecutors and public defenders both salaried on an equal pay scale with equal benefits.

Of course, I have no illusions about this happening in Michigan anytime soon. Though there is a conference about this tomorrow (which I, alas, probably cannot attend). Still, that won't stop me from tilting at windmills over this. One can always have hope (and push where one can).

** I should note that Michigan doesn't actually have a Public Defender system at all (which is really the problem) - each county does something different, and I am not sure if any county actually has salaried public defenders. I know my county just does appointed attorneys, who are then paid a pittance.

Tuesday, June 17, 2008

The Supreme Court's recent decision affirming that people the government has detained still have the right to Habeas Corpus, Boumediene v. Bush, has provoked quite a reaction from the right-wing - as is guaranteed to happen anytime a GOP executive has his power checked under the Constitution.

I think alot of what is said about this case is based on a simple misunderstanding of what our government is, what our Constitution provides for, and what our government actually has the power to do. On the part of people like John Yoo (UPDATE: See Glenn's reasoned dissection of Yoo here) and the WSJ, I think this misapprehension is deliberate and politically calculated. For others, I think it is just the result of reading the tripe in the WSJ. From commenting at Sweating Through Fog, I thought about this issue and I'm just going to repeat what I said there here:

I think there is a fundamental misapprehension about what this decision is about and about what our Constitution protects. The right at issue here, habeus corpus, is only at issue where the government has already imprisoned you. And all it is is a requirement that the government justify the imprisonment to a neutral tribunal. That's it. So saying we should give this right to only SOME of the people we lock up, that just doesn't make any sense at all. It is not about citzenship or non-citzenship - it is about what power the government has to imprison individuals. I somehow doubt we would have kind words for any nation that would lock people up with no recourse or proof with the only reason offered is that they are not citizens - I'd sure not call such a country a free one. If you go visit a country and you know you have no rights because you are not a citizen, that's a pretty scary visit.

There is no citizenship requirement for the bill of rights to apply. If you aren't a citizen and you are accused of a crime, guess what? The bill of rights still applies - there is no "citizenship test" to the fourth amendment.

And I then further clarified it:

Perhaps it is best to take a step back, to first principles. The first day of Con Law in Law School, you learn this basic fact: Our federal government is a limited government - in other words, any powers not specifically granted to it in the Constitution do not exist and it cannot do. Further, just to make things especially clear, there are provisions that make clear what the government cannot do (because some people, perhaps, are a little slow on the uptake of what a "limited government" means). One of the things our government cannot do is lock people up without justification or recourse. That simply is a power our government does not have and has never had. (There is a limited exception for situations of invasion or insurrection, basically, to allow for when the courthouse is burning and the judges are on the run, when it would be impractical to hold a hearing). Looked at it from that perspective, the ruling seems rather banal - it isn't about citizenship or non-citizenship - it isn't about where the prisoners are being held - it is about the jailors - the government. The government just plain lacks the power to lock people up without giving them a hearing. And that comes from our limited government constitution. As the opinion rightly pointed out, you can't turn on or off the constitution based on geography or citizenship - because the constitution ALWAYS applies to the government, it ALWAYS applies to the jailors. Look at it this way - for the geography, do you really think the president could simply take someone to Canada, then put a gun to his head and blow his brains out and it would somehow not violate anything in the Constitution because hey, while it was the government doing it, it wasn't in the US, so its perfectly legal? There is nothing in the constitution that says the constitution only restricts our government's behavior when they are standing in the right place. It ALWAYS restricts it. And as far as citizenship goes, as I already said, there are very few parts of the constitution that are limited to just citizens - like qualifications for office and the right to vote. The rest just applies to people, generally. And no, there are not any exceptions for "enemy combatants" - a term you will, in fact, find nowhere in the constitution, and was just made up out of whole cloth to justify the illegal actions of the administration (sort of like torture was turned into "enhanced interrogation techniques"). You can't write a memo and suddenly be absolved from following the constitution. (Sorry John Yoo). If you are really concerned about checks and balances, you should be concerned about the massive executive power grab of the past seven years - done while Congress had sat idly by and while court review was dodged left and right by playing all sorts of games, like pulling or transferring prisoners right before they get their court dates and then calling the issue moot. As I said before, I believe in the 10th Amendment. I'd have thought that anyone else who did so would hail this ruling as properly limiting government power to what is allowed in the Constution.

Monday, June 16, 2008

This is just disturbing. Now we, too, can enjoy the lawless boots of hired thugs on our necks at home. I think we need pithy catchphrase - "Blackwater paramilitary thugs trampling human rights - they're not just for Iraqis anymore!"

Thursday, June 12, 2008

There's yet another few posts on this at another site, which got me thinking some more. As I commented at one of them, as I've read these posts,

I'm reminded of something that happened to my dad years ago when he was trying to argue with a lawyer about what to put into a rental agreement. There were certain provisions that my dad objected to - and the other lawyer would say that the way they worked was exactly what my dad wanted to happen. So my dad would say - fine, if it works exactly the same way, then you won't mind wording it my way to make me happy and since it works the same, you should have no objection. But of course, he objected. Over and over. of course, that was a big red flag that actually it did NOT work the same, otherwise, why argue against it so strenuously?

That's what I think of now - why argue so strenuously to get adhesion arbitration upheld if it did not confer some large advantage - one larger than just any alleged cost or time savings (because after all, such things, if true, would only make it easier for people to complain - a lawsuit is expensive and difficult, right?) Particularly why argue for the adhesion contracts to be upheld - because if arbitration is so much cheaper and so much fairer to consumers, you'd expect them to volunteer for it without any adhesion clauses. After all, even if there is no arbitration clause in the contract at all, if you have a dispute with someone, you can right then and there make an agreement to settle the dispute with arbitration. If it is so great, consumers would opt for that even absent any contractual provisions at all. So obviously businesses think they are getting something out of it, and I think I can guess what that probably is.

As I highlighted in what I said, as I say again, if arbitration is so superior for consumers - cheaper, faster, and fair, then they should be opting for it in DROVES even absent any advance contractual provisions. There would be no need for any contractual provisions up front requiring arbitration. Further, there would certainly be no need to enforce adhesion arbitration clauses - you wouldn't need to force consumers to accept arbitration in adhesion provisions if they'd want them anyway. Thus, something more is afoot.

Wednesday, June 11, 2008

At least, that's how I see this. In a truly just world, this would simply never have happened. But in a semi-just world, the federal agents involved would all be charged with attempted murder (and with actual murder if the kid actually dies as a result of his not getting his medicine). Stealing medicine from cancer patients and then locking up the person who gave it to them (sometimes for free) for 100 years: that's federal "justice" for you. This makes me so sick I want to puke.

I won't rehash all of it. I will add my most interesting observation at this point. Ted has been arguing (amongst other things) that adhesion arbitration clauses are fine because they allow both parties to agree to the arbitrators. I took that to mean that such a thing was required. But in actuality, under the law (at least in Michigan) it is not required at all. An arbitration clause can let one party pick the arbitrator and it will be fully enforceable under Michigan law. I suspect it is the same in other states as well. Thus, I think Ted's argument falls apart for the simple reason that, if it isn't required, you are basically trusting the good graces of the other party not to screw you when writing an adhesion arbitration provision. Forgive me if I don't simply just trust that this won't happen. Absent a law requiring it, I simply don't think you can make a sweeping claim like Ted does. Even if it is true that 99% of arbitration clauses now include such language, tomorrow it could be 1%. It is totally up to the whims of whomever writes the arbitration clause - and in the case of an adhesion clause, the other party has no say in the matter and probably doesn't even know about the clause. That concerns me.

However, the bright side is that if it truly is almost all clauses that have Ted's language, then there should be no problem getting a law passed to make that language required. But until that happens, I don't see why the public should be eager to enforce adhesion arbitration clauses. "Just trust us" is not good business, particularly where you have no recourse in court if it turns out that trust was misplaced.

Oh, and as the post at simple justice highlights, there has been a recent article in Business Week (talked about in the WSJ Law Blog) about who really comes out ahead in arbitration in the NAF. Ted has already dismissed the article as just some trial lawyers whispering evil words into the Business Week reporter's ear.

There's been an interesting discussion on Corporate CEO Pay and such matters (such as what might be done to deal with the loot-the-corporate-treasury-level compensation given out at the Reason blog. I offered my two cents there which, briefly put, is to put executive compensation (and some other matters) up for a straight up or down vote from shareholders, with a majority or perhaps even a supermajority required to approve them - then at least the owners of a company can have some say in whether or not they'll let themselves be looted.

Tuesday, June 10, 2008

Cops! And I'm not talking about the TV Show! Ok, so I am. Let me first admit that I don't have any police friends, though I do have a friend who is married to a cop. But I don't hang out with him (the cop). I certainly respect the job they do - I know it can be dangerous at times and that it is a necessary one for society. And I'm sure there are a ton of really good cops out there. The problem is that the bad ones tend to be covered for by the good ones - the blue line, as it is called.

I got thinking about this after my previous post on grand juries - and the comments to it. In particular, I commented that I think that cops are especially good at testifying at trial in exactly the manner to assure convictions, whether the testimony is true or not. That's been called testilying. Most of the time I expect that sort of thing is where the cop simply is trying to convict someone they honestly think is guilty and so they "clean up" their memory of what happened so there is no room for doubt. Or, as I mentioned in the comment, something like:

for a car chase that turns into a foot chase at night - adrenaline pumping. I know that if I were in such a situation, I'd have trouble recalling particular details - there'd be some doubts. But these police - no doubts. Suspect X is the one who threw the gun on the ground during the high speed chase in the dark (and from the opposite side of the vehicle from the vantage point of the cop). Suspect Y and Z did not. 100% certainty. Absolutely sure. How can they be sure? I suspect the reason they are sure is that the decision was made that suspect X was going to be charged for having the gun, so all of the police need to have their stories straight. Because if they testified honestly - probably half of the cops would say that maybe suspect X threw the gun and half would say that maybe suspect Y threw it, and maybe most would say they have no idea, they could not see in the dark while frantically chasing a car at 90 mph, skidding to a stop, then jumping out of the car and running after them. Of course, then you introduce reasonable doubt for either X or Y having the gun - can't have that! We want to convict at least one of them! We pick X! Ok, X had it!

It is not that no one had a gun - clearly X or Y did - but the problem is, you can't convict both of having it - not for certain crimes (like felony-firearm or felon in possession of a firearm in Michigan) - but if you admit to the uncertainty, there is a chance that a jury might not convict either of them - reasonable doubt would compell that, actually, though I think perhaps may juries would pick one and convict anyway. But why chance it? A solid, nonwavering bit of testimony from all of the police there that X had it and X is convicted, period. Maybe even the cops involved convince themselves that X really did have the gun all along. And also that Oceania has always been at war with Eurasia. I don't know. I'm speculating. I just find testimony in such cases too good to be true.

I guess I idealize here. I want to hold police to a higher standard. They have a lot of power. Power corrupts. Power needs checking. Who polices the police? In popular culture, that would be IA - internal affairs - yet they are generally shown as "evil" for trying to stop cops from "doing their job." IA are the antagonists in cop movies. I somehow think that is wrong.

Before I close my meanderings here - I want to get back to Cops! The TV show. I have watched it quite a bit. I enjoy watching it. I find it utterly fascinating to watch. One thing that has struck me, though, is that most of the shows show cops dealing with the lower classes. You don't generally see them pulling over Rolls Royces - they pull over pickup trucks with missing windows. They stop at houses or trailer parks. Maybe that's just where most of the calls are. But it does paint a picture. The only time I can recall cops going to a nice middle class home was to get some wild animals out of the chimney. (And maybe once they got a boa snake out of a yard). When I see them going inside a house, the house is generally small, ramshackle, somewhat trashed inside, and obviously the home of a lot of poor people. So either pulling over middle class (or higher) people doesn't make good television or it just doesn't happen enough to fill a season. I think it can explain why the poor might have such a different view of the police than the rest of the population.

Monday, June 9, 2008

How do I know the Ham Sandwich is guilty? Why, the prosecutor told me so!(1) If you haven't guessed by now, this post is about Grand Juries. Though ultimately, this is about prosecutorial misconduct. Or really, about the use and abuse of prosecutorial power, something I've mentioned before.

What got me thinking about this again was this article about a man who was just indicted by a grand jury in what sounds like rather questionable circumstances. The police raided his home. He apparently fired his gun in self-defense before he knew it was the police (or rather, that's his version, which as far as I can see has considerably more credibility than the police version). If the grand jury system worked as it is supposed to, all of the problems with the police case would have been aired in the grand jury and this guy would likely not have been indicted. Grand juries are supposed to prevent prosecutorial misconduct in charging people where those charges are not supported. Instead, it seems like they are just a speed bump on the way to an indictment, no matter what the actual evidence.

It would be great if grand juries worked as intended and prevented questionable prosecutions. That would be a great way to provide a check on the huge, almost completely unchecked power prosecutors have. Though it will probably never happen. I've heard it said (By Posner, no less) that our justice system is designed to make it really easy to convict people without even giving most of them trials because otherwise, it could not function. He says this approvoingly, by the way. (Posner is a 7th Circuit Federal Appellate Judge). Given that only about 3% of cases go to trial, he is probably right that our system would be overwhelmed if every defendant demanded his constitutional right to a jury trial. But that is no reason to deny justice. Posner sees it as not a problem because he thinks most of them are guilty anyway, so the whole due process thing is more of a formality. I think that sort of thinking is dangerous thinking - it is all well and good when it is someone else who is on trial - I wonder if Posner would feel that way if it was him or a loved one accused. I somehow doubt he ever thinks about it that way.

There are lots of ways to deal with prosecutorial misconduct and to potentially check prosecutorial power. This way interests me mostly because it is a mechanism that is already in place (though currently toothless and ineffective). That makes it a good starting point for reform, even if the odds are long.

(1) - It has previously been said that a prosecutor could get a grand jury to indict a ham sandwich. Which is not much of an exageration.

Wednesday, June 4, 2008

Is it over? Please? Please can this primary be over? I was so looking forward to today, the day after the last primaries, because I figured finally, by today, the decision would be made, we'd have a Democratic nominee. But no, apparently, it isn't over. Clinton still has not offered a concession speech. She is moving forward as if she still could be the nominee. While there was certainly nothing wrong with this before Obama had enough delegates to clinch the nomination, now that he has, this is just sad. It would have been so classy to acknowledge Obama's victory, congratulate him, and then ask all of her supporters to get behind him in the general election against McCain - and a perfect opportunity for her to then blast McCain, setting him up for a knockout by Obama in his speech after hers. (And McCain's speech last night was about as inspiring as a limp noodle is sharp). But no, no concession speech. Instead, it is starting to look like there is arm twisting going on to get her name in the VP slot.

Originally, I did not think Obama should take Clinton on as VP - I thought it would hurt him more than it would help him. (Though I think a VP Obama would have definitely helped Clinton had she gotten the nomination). Then, I started thinking about it yesterday again, and thought that it might be more helpful and maybe it would be good for her to be VP. But now that it seems like she's trying to force the issue - like she's refusing to concede until he takes her on the ticket, then I'm just annoyed. It is not her decision to make. I somehow doubt people would be very kind to Obama if he had lost and then he tried to strong arm his way onto the ticket. I've also heard reports that she does not want any other woman offered the VP spot - apparently she is the only woman allowed to get that close to the presidency at this point. Sure, she's earned it, but I'm sure a lot of other women have earned that right too. It seems more and more like Clinton cares more about herself than any greater cause. And that then makes me again not want her as VP. How she acts over the next few days will determine, in my own mind, whether I think she should be VP. Which is too bad - she had a great opportunity last night and squandered it.

Finally, if Clinton's supporters would rather let McCain win (or even worse, would rather vote for McCain), rather than seeing Obama win, well, I don't even know how to begin to address such stupidity. Anyone who truly feels that way I think is off the deep end and I wouldn't even bother trying to change their mind. I'd have happily voted for either candidate in the general election - odds are their policy positions would not have been that far apart. There simply is no rational reason to be in favor of one of them being president during the primary but then be for McCain in the general election.

Tuesday, June 3, 2008

Fieger and his law partner were acquitted of all charges. Considering that the case was suspect from the beginning, and originated with the extremely corrupt Bush Justice Department in what was very likely a partisan witch-hunt, this is a huge victory. Following the link to the trial, you can go back and read all of the commentary on that blog from the trial, which has been very interesting reading.

Monday, June 2, 2008

I saw this post and it brought back some memories. Chimney Rock was the very first CYOA I ever got and I still remember it. I have over a dozen of the other books from that series, which started with the Cave of Time. I hope my kids enjoy them.

Lawyers are often refered to as "counseler." I heard many times in law school, and from other lawyers since, that this term is more descritpive of the role lawyers play than most would think. As Norm Pattis discusses here, clients often need a lot of hand-holding. They will call at all hours of the day and night looking for updates, looking for advice, looking just for reassurance. Many calls won't be about the case at all, but will be about other difficulties in the client's life.

But time is money, and unfortunately, one can't be on the phone all day with a client about his or her difficulties in life. There is work to be done. As Norm notes, charging the client for the time can be a way to discourage this. Another good practice is good communication - if you keep the client well informed as to what is going on at regular intervals, there is less room for anxiety. Litigation can take a long time. It is easy to think you've been forgotten if nothing has happened on a case.

I'm not sure what the best solution for this is, beyond what Pattis stated. He did post a followup when one of his clients read his post and wrote to him to express appreciation for the hand-holding.

You probably don't know it, but you've likely agreed to settle disputes by arbitration rather than in court. This is because many companies now routinely insert into their fine print arbitration clauses that cut off access to the courts (except for very limited circumstances). Oh, and those same clauses pick who the arbitrator will be. Of course, consumers get no say in this and often don't even know the clauses are in there. They only find out when the company does something wrong, violates the contract, and they try to sue, only to find out that they aren't allowed to.

Now, don't get me wrong, I have nothing against arbitration. It can be a much quicker and cheaper way to settle a dispute. I'm all for it. I'd just rather it be voluntary rather than pushed in an adhesion contract. Given what is at stake and what those clauses represent, nothing less than giving up your constitutional right to a day in court, I'd say anything less would be unacceptable. Some see these clauses as no different as any other contract clause. I beg to differ. (And I did in the comments to that post). I proabably even generally agree that it can be bad for the courts to nullify provisions of contracts for being adhesion contracts. That creates a lot of uncertainty. But I draw the line when it comes to totally giving up your right to even have a neutral magistrate hear your contract dispute.

It might be different if there was a neutral organization that was part of the judicial branch (fully funded by the taxpayers and fees, like the court system) that handled arbitration. A system that was like that, and whose members were selected like judges are selected (by election or appointment) would be acceptable. Then you'd at least be no worse off than you would be in court. But where who gets to decide is set by the dominant party, that is unacceptable, any more than it would be to get to select which judge decides your case. Even worse than that, the salary of the arbitrator is pretty much paid by the corporation through the business it sends to him or her through those contracts. That is a pretty strong incentive to find for the corporation. Which is why I'd rather see such clauses totally optional on the part of a consumer. You check the box, you get arbitration, otherwise, you get your day in court. And then it should also allow the consumer to choose the arbitrator. Then it couldn't be said that it wasn't fair and that it wasn't freely bargained for.

Absent that, or absent arbitrators being elected officials, I don't see how enforceing adhesion contract arbitration clauses is anything but unfair.